The HHS Decision

I’ve spent much of the past week working through the Obama Administration’s decision to not expand the religious employer exemptions for HHS mandated preventative health services. I believe President Obama and Secretary Sebelius made the wrong decision. These regulations create a conflict between a federal definition of the scope of religious organizations’ mission and their own theological definitions of their mission.

It would not have been legally simple to create a broadened federal religious employer exemption, but surely something could have been done. The legal complexities of the issue make it one that would have been litigated regardless of the decision. The Administration’s chosen religious exemption language has withstood legal challenges on the state level. It is beyond my ken to know whether federal use will be different. Questions of the scope of religious mission seem infinitely more complex than the narrow and long-litigated “ministerial exemption” of the recent SCOTUS decision. It’s clear the courts will soon have the opportunity to decide.

Such a decision requires balancing individual and organizational rights. The decision was certainly guided by the Administration’s expressed desire to expand access to contraception as something to which all women are entitled. Data show a large portion of abortions result from unplanned pregnancies and the administration has committed itself to reducing abortions. Of course the Catholic Church does not see this as a legitimate means of doing so. The USCCB has every right to protest these regulations.

Switching the content however, I become ambivalent. I would hesitate to say religious liberty requires that Christian Science or Jehovah’s Witness affiliated organizations not provide policies that cover surgery or blood transfusions. And, alas, Catholic teaching on contraception enjoys only slightly more support than these other strongly held religious beliefs.

From the start, the draft regulations made clear that that churches are exempt from these requirements as religious organizations that have “inculcation of religious values” as their purpose and who primarily employ and serve coreligionists are not bound by these regulations. But these last two requirements exclude crucial Catholic organizations such as Catholic Charities, catholic hospitals and schools. (Self-funded student insurance plans are also exempt.)

As the administration was informing stakeholders last Friday, Senior Advisor Valery Jarrett invoked the President’s encouragement that the model used in Hawaii be considered as a possible resolution in an HHS conference call about the final regulations.

Hawaii’s law allows religious organizations that morally opposed to contraception to provide policies without such coverage, and directs insurers to allow employees of such organizations “to directly purchase coverage of contraceptive supplies and outpatient contraceptive services. The enrollee's cost of purchasing such coverage shall not exceed the enrollee's pro rata share of the price the group purchaser would have paid for such coverage had the group plan not invoked a religious exemption.”

This might be a workable solution for non-exempt Catholic employers. How it would function on the Federal level has not been detailed. It is not codified in legislation or HHS regulations. If the Administration is serious about this option, it should take immediate steps to further clarify its commitment. Talk of convening meetings between insurers and religious employers sounds promising. The burden is on the Administration to develop this possibility.

The year delay in implementation is helpful for exploring workable options. Policy wise, a whole lot would have been solved by synchronizing this deadline with the activation of the state insurance exchanges in 2014 which will make it much easier for individuals to find affordable coverage outside of an employer plan.

On the Catholic side, some traditional precision is called for. This is precisely not “coercing religious ministries and citizens to pay directly for actions that violate their teaching” as Archbishop Dolan has contested in the Wall Street Journal. I see that red pencil “Distinguo!” my undergraduate ethics professor would write in the margins of my papers. This requires an indirect payment mediated through an insurance policy for an action that an employee may or may not chose to do.

I would very much like to see a detailed analysis of the level of material cooperation involved in purchasing an insurance policy in a market where all must include contraception, including anti-implantation methods. If this is impermissible material cooperation, what specifically makes this cooperation too proximate? What specific changes would need to be made for it to be sufficiently remote?

While there is much talk of the politics of the decision in terms of the current election cycle, I find a much deeper and lesser-remarked political tension to be a greater concern.

Domestic religious liberty is generally framed along the culture war divide in the US and not taken seriously by many on the left. It’s true that issues such as this insurance mandate pale in comparison with the sorts of violence, repression, and disenfranchisement experienced in other parts of the world.

Nevertheless, as progressives seek to expand government oversight and activity in order to promote the common good, there must be a concomitant development of provisions for dealing with the increased conscience conflicts that this will bring about for religious organizations. The Affordable Care Act’s use of regulatory oversight to achieve policy outcomes changes the equilibrium of religious liberty in important ways. The Obama administration is guilty of a failure of imagination in dealing with a problem directly linked to its central domestic policy achievement.

These progressive concerns find much resonance in the Catholic Social Doctrine, and Benedict XVI has been among the most forceful voices on such matters. Benedict XVI put wealth inequality on the table long before Occupy Wall Street and President Obama.

The Catholic Church could and should be an important ally in these matters. Of course the history of the relationship does not give cause for arguing the USCCB would have cheered. As women’s’ organizations howled at Sec. Sebelius’s and President Obama’s decision overrule the FDA and to not make Plan B available to girls under 17 without parental consent, the USCCB response was decidedly muted, if not backhanded.

As one who winced at the often unnecessarily confrontational stance that the USCCB took toward the Obama administration under Cardinal George, I’m equally troubled to see the Administration enact such a substantial stumbling block.

The year delay in implementation will no doubt be filled with lawsuits. Whether it is also filled with good faith efforts to come to an acceptable solution is now up to the Obama administration. For the future of our nation and their deepest political commitments, they would be wise to begin soon. Both sides have so much at stake.

Comments

Vince Killoran | 2/1/2012 - 9:48am

"The technical odds are stacked against an effective home remedy abortion method existing before the 20th century."

We're not really debating this point but the scholarship doesn't support your argument on this either. The fact is that no reliable statistics are available; American historians do know that herbs etc. were used widely in the colonial period for this purpose and began to appear in advertisements for abortificants by the early 19th century.

I think we are very close and even agree on the facts. My interpretaion of the facts is modestly that the churches always disapproved of abortion. As you point out the degree of disappoval varied depending on circumstances over time back and forth and was redefined and reanalyzed, But abortion was often considered as murder with exceptions. The degree of disapproval changed as the science and understanding of the fetal developemnt in the womb changed and the moral implications of the act of abortion changed. But abortion was always disapproved of to some degree by the churches.

The idea that abortion were effective in earlier times does not make sense. If effective abortion method did exist the method would have become known and more widely practiced, pasted on to future generations and documented. But no effective abortion method has survieved and is known including herbs.

Aborting a fetus is technically challenging even in a clinical settings where the basic biological sciences are well understood. In former days attempting and abortion would have been a high lieklihood of failure resulting in sever harm or death to the mother. Bad outcomes which even exist today would have dispromoted the idea of attempting an abortion.

Nevertheless a women who is desparate from being pregnant will attemp an abortion and will usually not succeed. But with rare dumb luck and determination an attempted abortion might succeed. But would be a rare desparate event that could not be repeated on some other women. The technical odds are stacked against an effective home remedy abortion method existing before the 20th century.

there would be no argument if there was insurance choice!people could choose their own coverage and pay for it with contraception & abortion included. obama care is anti -democratic by its nature;a free market in health[like auto] insurance would end the controversy,if that is what the obama administration wanted.

Tom, you are reading history selectively. Yes, abortions were rare, precisely because of the technical challenges you cite. But, abortion was not consistently and always condemned by the christian church and later, the Roman Catholic church (there were no Protestant denomnations until after Luther, obviously). It was condemned fairly consistently during the very early church, then Augustine came up with his agreement with ''ensoulment'' as per Aristotle, and abortion before ''ensoulment' or ''quickening'' was not condemned unless it was used to hide illicit sexual activity, it went back and forth for centuries as to how it was treated by the church. Almost 1000 years after Augustine, Aquinas also agreed with the ensoulment theory, and joined Augustine in affirming that it was not a homicide (as was infanticide) until after a certain period of time, until after what was called ''quickening'. In the centuries after Aquinas, the permission/condemnation again continued to change, depending on the pope. It has remained fairly consistent though for about 200 years when it has been condemned even in very early pregnancy. You weaken your own arguments when you refuse to accept historical fact. If you can't deal with the real and inconsistent history of the church's teachings on abortion, then some might wonder if other things you post are based on a solid foundation.

Tom writes in #24, "Looking it up one finds that abortions were very rare."

James Mohr notes that "the practice of aborting unwanted pregnancies was, if not common, almost certainly not rare in the United States during the first decades of the nineteenth century." [ ABORTION IN AMERICA: THE ORIGINS AND EVOLUTION OF NATIONAL POLICY, 1800-1900 (Oxford U. Press, 1978), p. 16].

William - keep in mind that until 1930 every single Christian denomination viewed contraception as intrinsically evil. What enlightenment of the American people has occurred since then to cause them to question this centuries-old teaching? The word itself implies an action that contravenes God's plan for humanity. It's the hierarchy's responsibility to be faithful to the teachings of the Church, and I for one am glad that they are still doing it. There are 30,000+ other Christian denominations in the USA that are living proof of the downside of veering away from the teachings of Christ and his disciples as sustained by the magisterium of the Church.

Looking it up one finds that abortions were very rare. Reliable technical means of having an abortion were not available until the 20th century. Herbs were used for abortions but were unpredictable in effectiveness and could have harmful side-effects that could injure the mother. Infanticide was used instead of abortion. Both abortion after the early stages of pregnancy and infanticide was considered murder. - very strongly disapproved of by the church and the law.

A more practical consideration is that the Obama administration estimates there are 2 million people employed by religious-affiliated organizations in the United States, most of these being Cathlolic-affilated. If a substantial number of these entities drop health insurance coverage for their employees rather than implement this rule, this will undermine the Obama administration's stated goal of reducing the number of the uninsured. Perhaps this might be a reason for the Obama administration to rethink their position.

According to the article the diocese could have avoided covering contraceptives by self-insuring but decided it would be more expensive to do that – so it decided to buy insurance that covered contraception.

The fact that Bishop Morlino has done this seems to make clear that, in his opinion at least, providing insurance for contraception is at most remote operation in evil and can be done in order to achieve an important good (providing health insurance for employees).

This, of ourse, very different from the view expressed by Bishop Olmstead that "We cannot - we will not - comply with this unjust law"

I guess an article like this has to be written. It accepts the reality of the situation: The Catholic hierarchy teaches that birth control is one of those intrinsically evil acts that have to be opposed on principle-and so how to deal with the HHS requirement in an effective way.

On the other hand, I think I belong to the majority of Catholics who think the hierarchy has taken the most extreme position on an arguable question. It is this extreme position taken by the leadership but rejected by most of the led that creates the quandary. A lot of prestige and energy wasted, from my perspective. Please, please, please-can't the hierarchy ever abandon its infallible certitude about sexuality issues?

I'm not certain why Tom persist in repeating his original comment and does not engage in the argument and evidence presented to him. That's fine, but he should be aware that he is factually incorrect. Please re-read Anne's comment and consult the Mohr book (as well as John T. Noonan, ed., The Morality of Abortion: Legal and Historical Perspectives, [Cambridge, MA: Harvard University Press, 1970]).

This is just one more reason why the 2010 Affordable Health Care Act should be repealed.

This legislation was the exclusively created by the Democrat party that controlled the Senate and House of Representative and the Presidency. This one-party monopoly of power was abused throughout the legislative process. The legislation was passed by a thin majority without the 2000 page text being available to leglislators to review and correct . The numerous negative impacts of the ill-considered provisions of this law are continuosly being discovered by institutions and employers. The Supreme Court will hear this years a contituional review of this law brought by 30 states' attorney gernerals. This law has a lot of problems.

But copies of this 2,000 page legislation where not available before this legialation was enacted for the public to react to and discover any problems. Now significant burdensome problems with the legislation are continuously being discovered. The problem here is this law gives broad, open-ended regulatory authority to the Secretary of Health and Human Services. Effectively the Secretary has decided today to include contraception as a mandatory part of Health Care. Now everyone must pay for someone elses contraceptive thereby increasing the cost of healthcare premiums on everyone without public imput. Many more budernsome regulations are ceratin to follow without recourse by the public as is hapepning to Catholic Institutions who have been denied accomodation to the practice of their beliefs.

Repeal of this Affordable Health Care law is an issue in this years election that should be supported. The next Congress should repeal this high-handed, burdensome law.

Your assertion in #15 that Christian denominations were not hsitorically anti-abortion is not true. You state: "... nor is it true that they were anti-abortion." where "they" referes to all Christian denomination until the 1930s. You seems to suggest that the anti-abortion stand of the churches is something fairly recent or new or somehow abortion was at time accepted or ignored.

All Christians were indeed historically anti-abortion and strongly so.until the mid 20th century. And the church and many Protestant churches have aways been anti-abortion. For most of term of a pregancy abortion was aways formally considered murder the Christians society. Abortion was always considered immoral historically. Opposition to abortion by Christian churches is ancient and constant.

To follow up on my earlier comment, I think the bishops should avoid a repeat of his fiasco:

<I> After fighting against the passage of a new state law requiring hospitals to provide the "emergency contraceptive" Plan B pill to rape victims, the Catholic bishops of Connecticut have announced that Catholic hospitals will comply with the law when it goes into effect next week.The Connecticut bishops had lobbied energetically against the legislation, pointing out that the Plan B pill can cause abortion if a woman has conceived when the drug is administered. In a May 2007 letter to Governor Jodi Rell, pleading for a veto of the bill passed by the state legislature, the Connecticut bishops noted that the pill "can only act as an abortifacient" if conception has taken place.Proponents of the Plan B protocol argue that the drug does not cause an abortion. That argument is based on the premise that pregnancy does not begin until the fertilized ovum is implanted in the mother's womb; the "emergency contraceptive" prevents that implantation, causing the destruction of the embryo.In their May appeal to the governor, the heads of the three Connecticut dioceses- Archbishop Henry Mansell of Hartford and Bishops William Lori of Bridgeport and Michael Cote of Norwich- said that the proposed legislation would cause a "direct opposition to our religious belief that life begins at the moment of conception and as such is a serious violation of a basic tenet of the Catholic faith." Governor Rell signed the bill into law despite the bishops' pleas.On September 28, however, the bishops joined with the heads of Connecticut's Catholic hospitals in announcing that the institutions would comply with the law. Barry Feldman, a spokesman for the Connecticut Catholic Conference, explained that the bishops had undergone "an evolution in thinking."</I>

How's this for a pat on the back for the Jesuits, from R. R. Reno over at First Things:

''Today’s New York Times reminds us that the Jesuits haven’t gone entirely off the rails. Their exposé exposes the fact that Fordham has resisted compliance with a New York state law that requires insurance coverage that pays for birth control pills. Nice to know that on this issue they’re keeping the C in Catholic up at Rose Hill in the Bronx.''

The assertion being challenged is " ... nor is it true that they were anti-abortion." where "they" are every Christian denomination up to the 1930s. This implies that Chrisitanity did not have an opinion on or did not care about infanticide. But Chrisianity definately had very strong convictions against infanticide and stongly separated itself from pagan cultures such as Roman, Hellenistic Druidic and pagan cultures that freely allowef the killing of children by their parent(s) all the time as a legal right. This behavior of killing your own child of course still goes on to this day but is stricly against the from Christian influence asserted from the very beginning.

Historically a child in the womb was still a child that the church and Protestants churches strongly protected from infanticide. The differenciation of who is a person and when is academic and not bedrock Christian doctrine or practice. The churches both Catholic and Protestant institutionally strongly protected the child from infanticide including the child in the womb and this ethic was part of the law of all Christian nations until around the 1960s.

By the way protecting the child in the womb is a very stong Christian family tradition and practice handed down from gereation to generation usually independent of formal theoliogical instruuction or sources. Families do a lot of teaching some of which is acient in origin. As is said " It is written in their hearts."

I would very much like to see a detailed analysis of the level of material cooperation involved in purchasing an insurance policy in a market where all must include contraception, including anti-implantation methods. If this is impermissible material cooperation, what specifically makes this cooperation too proximate? What specific changes would need to be made for it to be sufficiently remote?

I would too. It does not seem to me to be anything more than remote material cooperation. I gather that is what Fordham University decided in offering insurance including a similar range of services. My understanding is that Catholic institutions in California do the same.

I think the bishops will damage their credibility if they argue now that it is morally impossible to do this and, when time runs out, then say it is undesirable but OK. Better to be clear from he beginning.

Vince, you are correct. The views about abortion varied dramatically throughout the first 2000 years of christianity. Tom, you might want to research this a bit - for example, both Augustine and Thomas Aquinas (among other Catholic theologians/popes etc during the ages) did not condemn abortion as being a mortal sin - murder - until after ''quickening'' - which, depending on the theologian, occurred sometime between 40 days and 16 weeks after conception. They based their views on Aristotle, who believed that the soul evolved during gestation, from a ''vegetable'' soul to a human soul. The concept of ensoulment was adopted by both Augustine and Thomas Aquinas as well as others, but there has never been consistent agreement as to when this occurs. Sometimes in about the 18th or 19th century it was set at "conception". However, both Aquinas and Augustine condemned abortions that took place before "ensoulment"/quickening IF they were done to conceal the sin of adultery or fornication. The sin was in the illicit sexual activity not in the abortion per se.

But for the 85th time, most Catholics have long rejected HV arguments and the PRACTICE of using birth control and strilization (and, I believe, even abortion which I put in a different moral category) is as common as the rest of the population, no?

The bihops have continued to live with the illusion that these anti-birth control teachings are still somehow compelling when even some goodly percentage of priests have long told penitents (those who would yet confess this) to not mention it again and make their own choices. How long are we all going to play this game that this is an affront to a teaching that was never accepted?

Oh come on. " ... nor is it true that they were anti-abortion." "They" being every Christian denomination up to the 1930s.

From its origins Christians were strongly aganst anything harming a child and they diid not split hairs over whether a child in the womb was a child as in "she (the Virgin Mary) was with child".

Infanticied was wildy practive by all pagan cultures worldwide. Central to Christian belief was it strong disapproval of infanticide and the extreme value of the individual who could be saved.

From the very first mention of Christ in the Gospel finds Herrod want to kill Christ as an infant and does kill the Holy Innocents in the hope of killing Christ. Christians were always strongly agsinst infanticide that was so widely and freely proacticed in pagan cultures in Europe and the Middle East. This life of a child even in the womb has aways been a root issue with Christianity.

"It would not have been legally simple to create a broadened federal religious employer exemption, but surely something could have been done. The legal complexities of the issue make it one that would have been litigated regardless of the decision."

On the contrary, Notre Dame law professor Rick Garnett thinks such an accomodation was rather low-cost and easy to accomplish:

"And here, the cost, all things considered, is low; it would not be (that) hard to accommodate the objections while still achieving the state's public-policy goal. Because it would not be (that) hard, the refusal to accommodate - when so many accommodations are being granted to those who object to other burdensome provisions of the mandate - is revealed, I think, as what it is: A cynical imposition that transfers the cost of the government's policy goal (one that Congress did not vote on) to (primarily) Catholic institutions, in a way that will please the President's political base (and others who enjoy, for various reasons, seeing the Bishops lose)."

Progressive Catholics who championed Pres. Obama at the time of his Notre Dame speech need to face up to this harsh reality: the President chose to appease the most rabid pro-choice elements in the party, and the fact that he has been willing to jettison progressive causes on other points, but refuses to move on these issues is chilling. It's time to admit what many knew at the time of that speech: the President's words about respecting dissenting consciences on the issues of life were, at best, hollow, and at worst downright untrue.

Catholic academics have been quick to fire off letters to Republicans John Boehner and Paul Ryan for, in their views, violating Catholic social teaching; the time has come for them to do the same on this issue.

That's not exactly true, nor is it true that they were anti-abortion. According to historians James Mohr, in 1800 there were no crimes against abortion; the common law held that abortion was not a crime prior to "quickening" (i.e., the first felt movement of the fetus) in the fourth or fifth month of pregnancy. After quickening, abortion was usually considered a crime; but it was not equated with murder.

If the bishops feel this strongly perhaps they should cancel all health insurance. It's about time we had a single-payer plan like Canada and other civilzed countries.

Yet I am unconvinced that this merits any more exception than the Jehovah's Witnesses. (Have you ever really talked with Witnes about these beleifs? It's quite fascinating!)

I also think that the "morning after" pill available in cases of rape that is available at Catholilc hospitals (assuming there has not been fertilization!?!) and the Vatican's tacit (or perhaps explicit) approval according to reports, of birth control being given to nuns in the Congo who were in danger of being raped, demonstrates the strands of moral theology that require the precision of an eye of a needle to explain when the Church supposedly can't licitly fund birth control even though there are no religous or "practice" requirements as such asked of the employees who may utilize these services.

Then ther is my continued beef that the bishops have made only gestures, in mymind, about continued development of nuclear weapons when billions of our tax dollars fund this materially evil enterprise.

I realize this mixes together categories of argument and need the admonishment of a "Distinguo,"but I am not yet convinced that crving out this exception for such institutionsis good practice. As galieleo said, "Still, I am learning..."I